Theme 11 The Population in International Law

Theme 11. The Population in International Law

Questions to discuss: l l General characteristics of the international legal status of the population. International legal aspects of the concept of citizenship. Citizenship as an institution of constitutional and international law. Methods of acquisition and loss of nationality. Diplomatic protection. Dual citizenship or statelessness. International treaties in the field of dual citizenship and statelessness. The consequences of not acknowledgement of dual citizenship. Concept and types of legal regime foreign citizens. Principles of legal regulation of the status of foreign nationals. National Regime. Special mode. Most favored regime. The theory of "minimal guarantees". The right to asylum. Territorial asylum. Diplomatic asylum. International legal regulation of the status of refugees and IDPs. Installing and loss of refugee status.

General characteristics of the international legal status of the population

Convention on Certain Questions Relating to the Conflict of Nationality Law (1930) Гаазька конвенція щодо деяких питань, які стосуються колізій законів про громадянство l l all its members should recognise that every person should have a nationality and should have one nationality only; the abolition of all cases both of statelessness and of double nationality; It is for each State to determine under its own law who are its nationals. Any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of the State.

Universal Declaration of Human Rights (1948) Art. 15, para. 1 everybody is entitled to a nationality

Сonvention relating to the status of stateless persons (1954) Конвенція про статус апатридів l l l a “stateless person” as someone “who is not considered as a national by any State under operation of its law. ” minimum standards of treatment: stateless persons have the same rights as citizens with respect to freedom of religion and education of their children. For a number of other rights, such as the right of association, the right to employment and to housing, it provides that stateless persons are to enjoy, at a minimum, the same treatment as other nonnationals.

Convention on the Nationality of Married Women (1957) Конвенція про громадянство заміжньої жінки Article 1 Each Contracting State agrees that neither the celebration nor the dissolution of a marriage between one of its nationals and an alien, nor the change of nationality by the husband during marriage, shall automatically affect the nationality of the wife.

Nottebohm case (Liechtenstein v. Guatemala) l Nottebohm, born September 16, 1881 in Hamburg, Germany, possessed German citizenship.

Nottebohm case (Liechtenstein v. Guatemala) l He lived in Guatemala from 1905 until 1943 and never became a citizen of Guatemala.

Nottebohm case (Liechtenstein v. Guatemala) l On October 9, 1939, Nottebohm applied to become a naturalized citizen of Liechtenstein and he became a citizen of Liechtenstein.

Nottebohm case (Liechtenstein v. Guatemala) l l He then returned to Guatemala on his Liechtenstein passport and informed the local government of his change of nationality. When he tried to return to Guatemala once again in 1943 he was refused entry as an enemy alien since the Guatemalan authorities did not recognise his naturalisation and regarded him as still German. He was later extradited to the U. S. , where he was held at an internment camp until the end of the war. All his possessions in Guatemala were confiscated.

“Nationality” “nation” – “держава”, “політична нація” l “nationality” – “державна приналежність” l “ethnicity” – “національність” l “citizenship” – внутрішньодержавне громадянство l “national” – не лише громадянин, але й особа, яка не є громадянином (“non-citizen nationals”) Ст. 26 Конституції Австрії – виборче право на основі міждержавних угод може бути надане особам, які не є громадянами цієї держави l

The concept of nationality in public international law l nationality can no longer be determined as a personal relationship of allegiance, but rather as a legal status embracing a set of mutual rights and obligations towards a political entity fulfilling certain requirements necessary for the existence of a sovereign state.

Methods of acquisition of nationality Ius soli at birth l Ius sanguinis at birth l Naturalization l collective acquisition of nationality – optation Multiple nationality of citizenship, reintegration, restoration (відновлення) of citizenship l

Convention on Certain Questions Relating to the Conflict of Nationality Law (1930) Article 14. A child whose parents are both unknown shall have the nationality of the country of birth. If the child’s parentage is established, its nationality shall be determined by the rules applicable in cases where the parentage is known.

Convention on the Nationality of Married Women (1957) Article 3 1. Each Contracting State agrees that the alien wife of one of its nationals may, at her request, acquire the nationality of her husband through specially privileged naturalization procedures; the grant of such nationality may be subject to such limitations as may be imposed in the interests of national security or public policy.

Nationality: methods of loss a. naturalization in a foreign country b. express renunciation (зречення) of citizenship c. deprivation (позбавлення) of nationality

Principles of legal regulation of the status of foreign nationals l l National Regime. Special mode. Most favored regime. The theory of "minimum guarantees".

The right of asylum l is a juridical notion, under which a person persecuted for political opinions or religious beliefs in his or her own country may be protected by another country.

Universal Declaration of Human Rights (1948) Article 14: Right to asylum Everyone has the right to seek and to enjoy in other countries asylum from persecution. This right may not be invoked in the case of prosecutions genuinely arising from nonpolitical crimes or from acts contrary to the purposes and principles of the United Nations.

International Convention for the Protection of All Persons from Enforced Disappearance (2006) Article 16: 1. No State Party shall expel, return ("refouler"), surrender or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to enforced disappearance. 2. For the purpose of determining whethere are such grounds, the competent authorities shall take into account all relevant considerations, including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights or of serious violations of international humanitarian law.

The right of asylum l l l Territorial asylum. Diplomatic asylum. International legal regulation of the status of refugees.

Declaration on Territorial Asylum (1959) l l Article 1 1. Asylum granted by a State, in the exercise of its sovereignty, to persons entitled to invoke article 14 of the Universal Declaration of Human Rights, including persons struggling against colonialism, shall be respected by all other States. 2. The right to seek and to enjoy asylum may not be invoked by any person with respect to whom there are serious reasons for considering that he has committed a crime against peace, a war crime or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes. 3. It shall rest with the State granting asylum to evaluate the grounds for the grant of asylum.

Diplomatic asylum l l l A right of diplomatic asylum is not established in international law. The International Court of Justice has emphasised that in the absence of treaty or customary rules to the contrary, a decision by a mission to grant asylum involves a derogation from the sovereignty of the receiving state. The Organization of American States agreed a convention in 1954

International legal regulation of the status of refugees The Convention (1951) and the Protocol (1967) relating to the Status of Refugees

Who is a refugee? A refugee is someone who has been forced to flee his or her country because of persecution, war, or violence. A refugee has a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group. Most likely, they cannot return home or are afraid to do so. War and ethnic, tribal and religious violence are leading causes of refugees fleeing their countries.

Who is an internally displaced person (IDP)? An internally displaced person (IDP) is a person who has been forced to flee his or her home for the same reason as a refugee, but remains in his or her own country and has not crossed an international border. Unlike refugees, IDPs are not protected by international law or eligible to receive many types of aid. As the nature of war has changed in the last few decades, with more and more internal conflicts replacing wars among countries, the number of IDPs has increased significantly.

Fridtjof Nansen (10 October 1861 – 13 May 1930) l l was a Norwegian explorer, scientist, diplomat. in 1921 as the League's High Commissioner for Refugees. In 1922 he was awarded the Nobel Peace Prize for his work on behalf of the displaced victims of the First World War and related conflicts.

Nansen passports l were internationally recognized identity cards first issued by the League of Nations to stateless refugees. Designed in 1922 by Fridtjof Nansen, in 1942 they were honored by governments in 52 countries and were the first refugee travel documents.

Nansen passports l Approximately 450, 000 Nansen passports were issued, helping hundreds of thousands of stateless people to immigrate to a country that would have them. The Nansen International Office for Refugees was awarded the 1938 Nobel Peace Prize for its efforts to establish the Nansen passports. [1]